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Monday, December 2, 2013

It’s all in the way you look at it . . .

Today’s
case begins several years ago when Petitioner was charged with aggravated
stalking based on his surreptitious viewing and photography of a thirteen-year
old girl in her bedroom. After the
arrest, the police got a warrant and searched petitioner’s house. That search led to five counts of possession
of child pornography.

Following
his arraignment, Petitioner filed a motion to dismiss the aggravated-stalking
charge on a theory that the State can’t make a prima-facie case, arguing that
the stalking statute required contemporaneous fear or emotional distress on the
part of the victim. The trial court
denied the motion. Petitioner filed a
motion to suppress the incriminating evidence, which the trial court also
denied.

Subsequently,
Petitioner pled (or “pleaded” depending on your pedantic preferences) guilty to
one count of aggravated stalking and two counts of child pornography. He received a mostly suspended sentence but
violated his probation and ended up in jail.

From
prison, Petitioner filed a petition for post-conviction-relief (PCR). He was appointed attorneys who helped him
amend the petition, which argued that there was no factual basis for the court
to accept Petitioner’s guilty plea on the aggravated stalking charge because—as
argued in his initial motion to dismiss—there was no contemporaneous fear or
emotional distress. The petition also
argued ineffective assistance of counsel because Petitioner’s trial counsel: (1)
failed to challenge the initial stop that led to his arrest; (2) failed to
request a hearing on his motion to suppress evidence; (3) allowed him to plead
guilty to multiple counts of child pornography; (4) failed to preserve a right
to appeal his plea; and (5) failed to engage a camera expert.

The State
filed a motion for summary judgment, arguing the opposite—that petitioner’s
trial counsel was not ineffective.

In two
orders,” the trial court granted the State’s motion with respect to four of the
five claims of ineffective assistance of counsel and scheduled a hearing on
petitioner’s claim that counsel was ineffective for failing to seek a hearing
on his motion to suppress.” After a
hearing on the surviving ineffective-assistance-of-counsel claim, the court
granted Petitioner’s PCR petition.

The State
appealed, arguing that a lack of contemporaneous fear did not invalidate the
charge of aggravated stalking.
Petitioner cross appealed on the faulty-investigatory-detention issue.

The SCOV
first considers the trial court’s decision to vacate the aggravated-stalking
charge. The trial court’s reasoning was
apparently based on a change in the language of the statute (after petitioner
was charged) that eliminated an apparent need
for contemporaneous fear on a victim’s part.
Ergo, the legislative change must have been to correct that problem, and
petitioner couldn’t have been convicted under the statute as it existed at the
time of his conduct.

Makes
sense in a way, right?

Wrong.

The SCOV
doesn’t see it that way. As the SCOV
explains: “No language in the aggravated
stalking statute requires that the victim’s fear or emotional distress be
contemporaneous with the stalking conduct.
Its terms suggest no such concurrence is required.”

In other
words, simply because there was a legislative change does not mean that the old
statute should now be read to require contemporaneous fear where its language
does not indicate this element. Elementary
logic, Watson, post hoc, ergo propter hoc—simply because one follows the other does
not mean that the other caused the one.

And so
the SCOV reverses petitioner’s vacated conviction and reinstates it.

Moving to
Petitioner’s claims concerning his initial detention, a few facts are
necessary. The victim’s dad was relaxing
in his backyard hot tub at about 9:00 p.m.
when he saw Petitioner skulking around and looking in his daughter’s bedroom
window. victim’s dad also happened to be
an off-duty police officer. He went
inside to get changed and saw Petitioner look in the daughter’s window a few
more times. He got a good look at Petitioner.

Dad went
outside. Petitioner got in his car,
drove up the street, turned around, and headed back toward the house. At this point, dad stepped in the road and
stopped him, inquiring as to Petitioner’s activities. Petitioner claimed he was looking for a dog
that he’d hit with his car. Needless to
say, dad was not satisfied with this story.
He then told Petitioner he was a police officer and asked for
identification. Dad knew his wife had
called the police, so he asked petitioner to get out of the car and wait. At one point, Petitioner tried to start the
vehicle and leave, and dad bopped him on the head with a flashlight.

The
police showed up a few minutes later, arrested Petitioner for trespassing. When they searched him, they found latex
gloves and a digital camera.

The
argument below and on appeal is that trial counsel was ineffective for not
filing a motion to suppress based on these facts. The argument was rejected below due to
petitioner’s inability to show prejudice—there was no likelihood of success on
that motion, the trial court reasoned, because dad was acting as a private
citizen and not as a police officer during the initial detention, which was
based on reason to believe Petitioner had committed a felony.

The SCOV
largely agrees, reasoning that until dad identified himself as a police
officer, he was acting just as any other private citizen would be entitled to,
not as a state actor, and there would be no Fourth Amendment violation.

After
petitioner’s story didn’t add up, the brief detention was justified based on a
reasonable suspicion of wrongdoing, even though dad was now acting as a police
officer. Petitioner argues that the use
of force and length of detention turned the encounter into a de facto arrest,
but the SCOV rejects that argument, noting that the entire detention took about
three minutes. The
bop-on-the-head-with-a-flashlight piece was reasonably necessary under the
circumstances to stop petitioner from fleeing. Anyone who listens to Parliament would know
this about the Bop Gun.

And so Petitioner’s
victory on the elements of his conviction is short lived and negated. Summary judgment for the
State, and the petition is dismissed.

So, it’s all
in the way you look at it: Petitioner’s argument that contemporaneous fear was
required was certainly plausible, and
the trial court agreed, but at the end of the day, the SCOV doesn’t see it the
same way and the sun sets on petitioner’s PCR petition.